Libya's failure to hand over Gaddafi son must be referred to UN, says ICC counsel

Chris Stephen

The chief defence counsel of the international criminal court has called on the court to make a formal complaint to the UN about Libya's failure to hand over war crimes suspect Saif al-Islam Gaddafi.

Xavier-Jean Keïta said on Thursday that patience with the Tripoli authorities, who have held Gaddafi in isolation for four months, has been exhausted.

"Libyan authorities have also been cautioned of the consequences of non- co-operation, but have taken no steps to commence the implementation of Mr Gaddafi's surrender," said Keïta.

He recommended the move after highly critical reports were released by the ICC accusing Libya's government of obstructing court officials.

Libya said this week it will try Gaddafi, 39, for "murder, rape and torture" on home soil.

But the ICC, which has charged the second son of the late Muammar Gaddafi with war crimes and crimes against humanity, is concerned he will not get a fair trial in Tripoli. Those charges have primacy under international law.

Last week the ICC's defence counsel accused Libya of manipulation in its dealings with the court, saying he was told by Tripoli officials that Gaddafi would be tried not for war crimes but for "alleged failure to have licences for two camels, and cleaning of fish farms".

On Wednesday The Hague court inadvertently released a scathing report in which a senior registrar who interviewed Gaddafi, being held by militia in the mountain town of Zintan, said there was evidence of torture.

The report, which judges withdrew two hours after they posted it on the ICC website, said the registrar was unable to meet Gaddafi alone in his cell, with a Libyan prosecutor insisting on being present. Only when the official briefly left the room was Gaddafi able to speak freely.

"The registry representative quickly asked the suspect how he was and whether he was mistreated," she wrote. "His attitude changed from relaxed to intense and without saying a word he waved the hand where two fingers were missing and pointed to a missing tooth in the upper front of his dentition."

ICC rules state that a suspect must be handed over to The Hague court for trial, unless a government can demonstrate it can hold fair proceedings on home soil.

Libya says it will present a request for a home trial by 30 April, but the justice minister, Ali Khalifa Ashur, said last weekend that Gaddafi's trial would start before that date and would be finished before elections scheduled for June.

"It is clear that the ICC will not be in a position to render its decision on the admissibility of the case until after Mr Gaddafi has been tried, and potentially sentenced and executed," wrote Keita.

Amnesty International has complained that Libya's justice system is "virtually paralysed" and unable to hold a fair trial.

A referral to the UN security council, if ordered, would represent a show of strength for the court as it struggles to assert its authority.

It also takes the ICC into uncharted territory.

In the past, the UN and EU have ordered sanctions against Serbia and Croatia for failure to hand over war crimes suspects.